By Bamidele Kolawole
A fiat simply means “let it be done”. It denotes the grant or conferment of power on another by a person having complete authority on the issue upon which the fiat was given; in matters of prosecution, the A.G of States and Federation can give such a fiat.
The word prosecute means to bring a charge against an accused person in court, to see whether he/she is guilty or not. It is the process an accused person answers query for the alleged offence against him.
However, the word fiat is word in the legal parlance is coined from the Latin word meaning ‘let it be done’. Legally speaking, it means the given or assigning of power or authority to another who does not have such authority or legitimate right to carry out that peculiar assignment. One can say he/she lacks the authority, outside the purview of his/her power.
S.211 of the 1999 Constitution of the Federal Republic of Nigeria as amended, it is the Attorney General(A.G.) of the state who has the power to institute, withdraw and prosecute crimes in the state, that power is called power of nolle prosequi.
By the subsequent provision of subsection 2 of this section, these powers of the A.G. can also be delegated to officers in the state Ministry of Justice only.
This provision by its reason, therefore, introduced a rule and the rule is that institution and prosecution of crimes is reserved exclusively for the A.G. of the state, this rule has stood for a very long time,, therefore private citizens or private legal practitioners cannot exercise that power unless that such private individual who wishes to prosecute a crime applies to the Attorney General to delegate such power to him and the A. G. can thereby delegate the power to the private citizen to prosecute crime by the issuance of a legal document known as “fiat” to that private citizen.
This has been a long-held rule that a private citizen cannot institute and prosecute crime in Nigeria except with the consent and authorization of the A. G. of the state but this rule has been overruled by the recent (2022) judgment of the Supreme Court of Nigeria in the case of RAPHAEL OBIJIAKU V CHIEF JOE OBIJIAKU & 2 ORS (2022) 17 NWLR (PT. 1857) 377 at 405 Paras E- F.
His Lordship Aboki JSC while reading the leading judgment held inter alia thus;
By the above judgment, the Supreme Court of Nigeria, the long-known and long-held position of the law that it is only the Attorney General of the State that can prosecute or authorize the prosecution of criminal complaints in the Courts has been overturned. This is the new position of the law.
Private prosecution is not a common practice in the Nigerian Legal system. The practice although rare is largely enabled by the Attorney General’s approval via Executive FIAT, which must be applied for by the Prospective Private Prosecutor.
However, a private legal Practitioner may prosecute criminal charges under an arrangement that is different from the one by FIAT on application. It can so happen when the Attorney General “Firm out” criminal cases to private legal practitioners to Prosecute on behalf of the State, impliedly serving as Counsel representing the Attorney General’s chambers.
Under this second arrangement, the State will pay legal fee or Professional fee to the beneficiary of the “FIRMING-OUT”, whereas, under private prosecution via FIAT the State will not pay the private lawyer because, he applied for it with reasons on serious interest.
Hitherto, the law was that private lawyers, under our criminal jurisprudence, are not allowed to prosecute criminal matters without first obtaining the Attorney General’s Fiat.
For any private lawyer to prosecute a criminal matter in any court in Nigeria, he must first obtain Attorney General’s Fiat to do so since the Attorney General is the chief law officer of the State.
But this position of law seems to have been thrown into the waste bin of history. The law now is that private lawyers can now prosecute without first seeking and obtaining Attorney General’s Fiat.
The Supreme Court of Nigeria, in a recently decided case has fundamentally changed the long held position of the law that it is only the Attorney General of the State that can prosecute or authorized the prosecution of criminal complaints in the Courts.
According to the Apex Court, the provision of the Administration of Criminal Justice Law (ACJL) giving powers to private legal practitioners or private citizens to prosecute without the authority of the Attorney General of the State is not in conflict with Section 211 of the Constitution of the Federal Republic of Nigeria 1999 ( As Amended) that vest exclusive powers on the Attorney General to prosecute or authorize prosecution by fiat.
This new position of law was recently held by the Apex Court in the case of RAPHAEL OBIJIAKU V CHIEF JOE OBIJIAKU & 2 ORS (2022) 17 NWLR (PT. 1857) 377 at 405 Paras E- F, where Aboki JSC held that:
“A private legal practitioner or indeed a private citizen, has the indisputable right, under section 301(1) of the Anambra State Administration of Criminal Justice Law, 2010, to lay a complaint and prosecute same, without the fiat of the Attorney General of the State”.
The implication of this new position of law in our criminal jurisprudence is that just like in civil suits where private lawyers can approach the court to institute a civil action by filing necessary originating processes, they can now institute criminal actions by bringing criminal charges to court and prosecute same without first seeking the leave of the Attorney General by way of obtaining his Fiat.
Aishat Oluwasewa Oseni Esq
The Constitution of the Federal Republic of Nigeria 1999 makes provisions for the office of the Attorney General of the Federation and of the States. Section 174 (1) of the 1999 constitution spells out the powers of the Attorney General of the Federation. Ditto for the States Section 211 of the Constitution of the Federal Republic of Nigeria 1999, provides:
The Attorney General of a state shall have power: to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly; to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
Section 94 of the Administration of Criminal Justice Law, Ondo State, 2015 spells out the powers of the Attorney General of the State. Section 94(3) goes on to state that “The Attorney General of Ondo State may authorize any other person to exercise any or all the powers conferred on him under this section”.
What is a fiat?
A fiat simply means “let it be done”. It denotes the grant or conferment of power on another by a person having complete authority on the issue upon which the fiat was given; in matters of prosecution, the A.G of States and Federation can give such a fiat.
Once a fiat is used, it remains valid through the duration of the case, all through to appeal if it gets to that stage.
The Attorney General can however, revoke or withdraw its fiat at any time.
Therefore, an Attorney General of the state can give such authority already bestowed on him by the constitution, to a private legal practitioner, for the prosecution of criminal proceedings in Nigeria court.
Flowing from the above, we can deduce that the Attorney general of the state has been bestowed by the 1999 Constitution of the Federal Republic with the power to institute Criminal matters on behalf of the state and so does he have the power to give the authority to a private legal practitioner through a fiat.
However, in a recent decided Supreme Court case of Raphael Obijiaku v. Chief Joe Obijiaku & 2 ors (2022) 17 NWLR (pt. 1857) 377 at 405 paras E-F. His Lordship Aboki JSC while reading the leading judgement held inter alia thus;
“A private legal practitioner or indeed a private citizen, has the indisputable right, under Section 301(1) of the Anambra State Administration of Criminal Justice Law, 2010, to lay a complaint and prosecute same, without the fiat of the attorney General of the State”.
The Supreme Court further emphasized that the notion that the provision of the Administration of the Criminal Justice Law, granting powers to private legal practitioners or private citizens to prosecute without the authority of the Attorney General of the State is in conflict with Section 211 of the 1999 Constitution of the Federal Republic of Nigeria, is held in error, therefore the power issued to private citizens by the ACJL to prosecute crimes is not in conflict with any constitutional provision.
By the above judgment, the Supreme Court has overturned the long-known and long-held position of law that it is only the Attorney General of the State that can prosecute or authorize the prosecution of criminal complaints in Court.
The question now however is, would the above decision of the Supreme Court not lead to an abuse of power by private practitioners?
The Supreme Court of Nigeria has drastically changed the long held position of the law that it is only the Attorney General of the State that can prosecute or authorized the prosecution of criminal complaints in the Courts.
According to the Apex Court, the provision of the Administration of Criminal Justice Law (ACJL) giving powers to private legal practitioners or private citizens to prosecute without the authority of the Attorney General of the State is not in conflict with Section 211 of the Constitution of the Federal Republic of Nigeria 1999 ( As Amended) that vest exclusive powers on the Attorney General to prosecute or authorize prosecution by fiat.
A new position of the law and very interesting development in our jurisprudence is clearly captured in the recent decision in the case of RAPHAEL OBIJIAKU V CHIEF JOE OBIJIAKU & 2 ORS (2022) 17 NWLR (PT. 1857) 377 at 405 Paras E- F, where Aboki JSC held,
“A private legal practitioner or indeed a private citizen, has the indisputable right, under section301(1) of the Anambra State Administration of Criminal Justice Law, 2010, to lay a complaint and prosecute same, without the fiat of the Attorney General of the State.
The Supreme Court has recently held that a private person can prosecute criminal complaint without the fiat of the A.Gs.
This decision is in line with provisions of the Administration of Criminal Justice Law (ACJL) of the various states which provide for trial by direct complaints from private individuals.
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Very interested, thanks